Opinion
CLAIM NO. E809002
OPINION FILED JULY 2, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by J. CHRIS BRADLEY, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
[2] The respondent appeals a decision of the Administrative Law Judge filed on December 31, 1998, finding that the claimant has proven by a preponderance of the evidence that he sustained a gradual onset type back injury while working for the respondent and finding that this claim for benefits was not barred by the statute of limitations. Based upon our de novo review of the record, we find that this claim for benefits is barred by the Statute of Limitations. Therefore, we hereby reverse the decision of the Administrative Law Judge.The claimant began working for the respondent employer in 1973, and worked until he terminated his employment on September 27, 1996. He initially worked with light equipment such as trucks and backhoes but eventually started operating heavy equipment used on the road crew. The claimant testified that the use of the various machines took a physical toll on him and that the work required bending, lifting, pushing, pulling, continuous griping and lots of vibration due to the rough surfaces on which the road crew worked. The claimant explained that although the machines had different physical requirements, the smaller milling machine was particularly punishing due to the vibration.
A review of the claimant's personnel file revealed that from the late 70's through September of 1988 the claimant would occasionally take a day or two off due to back problems charging this time to his sick leave. On June 6, 1994, the claimant took off time to have physical therapy on his back. The claimant testified that he began having severe pain down his right leg and that he finally sought treatment from Dr. Knox. Dr. Knox gave the claimant a cortisone shot and ordered physical therapy. The claimant was off work for approximately one month and returned after the 4th of July holiday in 1994.
On June 6, 1994, the claimant had a CT scan made of his lumbar spine which demonstrated the presence of a small disc protrusion at L5-S1 on the right. On June 9, 1994, Dr. Knox wrote that he had seen the claimant for a history of gradual onset of lumbago that was not related to a specific incident but had progressively worsened. Dr. Knox noted that the pain went into the claimant's right hip and down his right leg to his ankle. Dr. Knox indicated that an increase in activity increased the claimant's symptoms. Dr. Knox noted that the claimant had a herniated disc at L5-S1 and was to undergo a shot of depo-Medrol and continue with conservative measures over the following weeks. The claimant continued to have discomfort and missed a few days of work here and there but never returned to see Dr. Knox for pain. He then began seeing Dr. Musky, a chiropractor, for adjustments.
In May of 1995, the claimant sought treatment from Dr. Vincent Runnels. Dr. Runnels wrote on May 22, 1995, that he had seen the claimant for a second opinion regarding the possibility of back surgery due to his complaints of right hip pain that radiated down his leg to the knee. Dr. Runnels noted that the claimant's x-rays revealed degenerative disc disease and facet atrophy particularly at 4-5 and a slight bulge of the disc laterally at 4-5. Dr. Runnels opined that it was not bad enough to warrant surgery at that time. Conservative treatment was recommended and Dr. Runnels noted on September 23, 1996, that the claimant could not continue to operate heavy equipment without increasing his chances for needing surgery. The claimant testified that in September of 1996 the pain became constant and the medications did not offer him any relief. Claimant's personnel records show that beginning in October of 1996 through March 26, 1997, the claimant continued using his sick days as well as vacation and personal holidays. After September 27, 1996, he drew disability benefits.
The respondents contend that if the claimant sustained an injury from his employment, it manifested on or around June 9, 1994, when the claimant sought medical treatment and missed work for a period of time sufficient to draw workers' compensation benefits.
Ark. Code Ann. § 11-9-702 provides in pertinent part:
Time for Filing. (1)(A) A claim for compensation for disability on account of an injury, other than an occupational infection, shall be barred unless filed with the Workers' Compensation Commission within two (2) years from the date of the compensable injury. . .
(B) For purposes of this section, the date of the compensable injury shall be defined as the date an injury is caused by an accident as set forth in § 11-9-102(5).
Arkansas Courts held under pre-Act 796 law that the Statute of Limitations does not begin to run until the true extent of the injury is manifested and impairs an employee's wage earning capacity. Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950); Shepherd v. Easterling Construction Co., 7 Ark. App. 192, 646 S.W.2d 37 (1983), Hall's Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992).
Prior to Act 796 of 1993, however, the above quoted language stated within two (2) years from the date of the "injury", not "compensable injury". Under prior law the date of the injury and the date of the accident were not necessarily the same. Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983);Arkansas Louisiana Gas Company v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983). Instead, "injury" referred to the state of facts which first enabled a claimant to file a claim for compensation. Hall's Cleaners, supra. Furthermore, a claimant was not entitled to compensation until he sustained a disability from injury arising out of and in the course of their employment. Ark. Code Ann. § 11-9-501(a)(1) (1987). The law defines "disability" as the incapacity to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury. Ark. Code Ann. § 11-9-102(5) (Michie 1987); Shepherd, supra.
Accordingly, a "disability" which is compensable under the workers' compensation law is based upon incapacity to earn because of injury. Consequently, a claimant is not entitled to compensation, and the statute of limitations did not begin to run prior to Act 796 until the injury caused an incapacity to earn the wags which the employee was receiving at the time of the accident and until the wage loss continued long enough to entitle him to benefits under Ark. Code Ann. § 11-9-501(a) (Michie 1987). Therefore, the statute of limitations did not begin to run until the claimant sustained a loss of wage earning capacity.
By Act 796 of 1993 it appears that the General Assembly specifically abrogated the Statute of Limitations rule established in Hall's Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992) at least with regard to those injuries which are caused by a specific "accident." Pursuant to Act 796, compensable injury is defined at Ark. Code Ann. § 11-9-102(5)(A)(i) as one "caused by a specific incident and is identifiable by time and place of occurrence." Here, however, the record is clear that the claimant's back injury was not caused by a specific incident, identifiable by time and place. As such, the claim for benefits would be governed by application of Ark. Code Ann. § 11-9-702 to Ark. Code Ann. § 11-9-102(5)(A)(ii). The question presented is what date shall be used to establish a compensable injury date for the purpose of the statute of limitations in cases involving a gradual injury.
In City of Fouke v. Buttrum, 59 Ark. App. 219 (1997) the Arkansas Court of Appeals rejected the approach heretofore used in establishing a date of injury for Statute of Limitations purposes and adopted the Commission's methodology of establishing the date of a gradual onset injury by determination of the time the injury was first manifest as an obvious and unresolved physical injury. In so doing, the court, announced that it was not deciding an issue that would already be governed by one of the acts, i.e., when the injury became compensable for statute of limitations purposes."
In Ham v. Alumacraft Boat Co., Claim No. E708498, FC Opinion December 17, 1998, the Commission stated that "Act 796 only changed the law with respect to specific incident injuries and the strict construction doctrine requires the finding that the law remains unchanged with respect to gradual onset injuries." That is, the Statute of Limitations does not commence to run until the true extent of the limitations manifest and causes an incapacity to earn wages which persists long enough to entitle the claimant to benefits under Ark. Code Ann. § 11-9-501 (Repl. 1996). The Arkansas Supreme Court, in the case of Minnesota Mining and Manf. V. Baker, 337 Ark. ___, ___ S.W.2d ___ (opinion delivered March 25, 1999), stated that for purposes of commencing the Statute of Limitations under 11-9-702(a)(1), an "injury" is not to be construed as "compensable" until (1) the injury develops or becomes apparent and (2) the claimant suffers a loss in earnings on account of the injury. Accordingly, the statute of limitations does not begin to run until both elements of this rule are met.
It is apparent from the record in this case that the claimant's injury became apparent in 1994 and that he suffered a loss in earnings on account of that injury in 1994. The record shows that the claimant sought treatment from Dr. Knox in June of 1994 for a herniated disc. Further, the records of the personnel department indicate that the claimant lost sufficient time from work to begin to earn workers' compensation benefits at that time. Ark. Code Ann. § 11-9-501(a)(1) states:
Compensation to the injured employee shall not be allowed for the first seven days disability from injury excluding the day of injury. (2) If disability extends beyond that period, compensation shall commence with the ninth day of disability. (3) If a disability extends for a period of two weeks, compensation shall be allowed beginning the first day of disability, excluding the day of injury.
It is obvious that the claimant has satisfied this section of the Code in order to receive disability benefits. He was off for a period of over two weeks. Disability commenced on June 6, 1994, and he returned after the July 4th holiday in 1994. The underlying character of the claimant's injury has not changed since June of 1994. The claimant should have filed for benefits prior to June of 1996 to avoid having the claim barred by the statute of limitations.
We would note that the record failed to contain any stipulation, document or testimony indicating the date on which the claimant filed his claim. The AR-C Form filed with the Commission by the claimant on July 29, 1998, has been blue-backed and made part of the record.
Therefore, after reviewing all the evidence in this case, we find that the claimant's claim for benefits is barred by the Statute of Limitations. Accordingly, we hereby reverse the decision of the Administrative Law Judge and deny and dismiss this claim.
IT IS SO ORDERED.
Commissioner Humphrey dissents.